Motion

Case #cv15-78

 

In the Separate Juvenile Court of Douglas County, Nebraska

Judge  Daniels

In re of  Miller, a minor

Cindi Miller, Mother, Pro Se litigant

Katrine, GAL for child

 

Comes now Cindi , mother of Miller, in a motion to dismiss with prejudice due to the following acts of fraud upon the court as well as numerous other violations and malfeasance by the state worker Jill and the G.A.L. Katrine.

Jill submitted a sworn affidavit claiming last known address for Mother was at 1626 Victor in Omaha on September 20, 2016 at an evidentiary hearing to suspend mothers visits based on false allegations of ¨threats to service providers¨ after stating she was planning to take them to court to sue for violating the entire families rights. This was done to prove the attempted  proper service to inform the mother of the hearing date and time had failed due to incorrect address. Jill committed perjury in this sworn affidavit as evidenced by an email from the GAL on the same day, September 20, 2016, stating if Park Ave was not current address that  mother needed to notify Jill of the change. Visits had been approved just a couple weeks prior at the then current address mentioned by the GAL. Jill also had a meeting with the mother at her previous home on 25 and Marcy, (months after moving from victor st) in November of 2015. This denied due process and right to a fair hearing and to present evidence and cross-examine the 3 witnesses who testified against her that day. Mother was never aware of this hearing prior to, and was denied a right to a fair hearing by fraud upon the court and malicious acts of the G.A.L. and Jill in an attempt to destroy the relationship between mother and child. Mother repeatedly asked for this court order numerous times (email evidence) only to be ignored by all parties. Sarah, a supervisor, in an attempt to avoid having a family team meeting at the mother’s house as she requested, provided the mother with these orders only to show that safety concerns required the meeting to be in a public, neutral place. Upon examination, the mother discovered the perjured sworn affidavit made by Jill. The mother has been belligerently asserting that these acts of the state have been depriving her of many rights she is guaranteed from the beginning to no avail only to be ignored and then blamed for what she tried bringing to everyone’s attention months prior.

Federal Rule 6(B) Grounds for Relief from a Final Judgment, Order, or Proceeding. On motion and just terms, the court may relieve a party or its legal representative from a final judgment, order, or proceeding for the following reasons:

(1) mistake, inadvertence, surprise, or excusable neglect; (2) newly discovered evidence that, with reasonable diligence, could not have been discovered in time to move for a new trial under Rule 59(b); (3) fraud (whether previously called intrinsic or extrinsic), misrepresentation, or misconduct by an opposing party; (4) the judgment is void; (5) the judgment has been satisfied, released, or discharged; it is based on an earlier judgment that has been reversed or vacated; or applying it prospectively is no longer equitable; or (6) any other reason that justifies relief.

The state and other parties involved have deliberately planned and executed a plot to defraud the mother and child as well as the juvenile court in this matter. This case has included the following acts of malfeasance or violation of law and rights of both mother and daughter;

  1. Abuse of discretion
  2. Abuse of power
  3. Neglect to prevent
  4. Lack of due diligence
  5. Forgery
  6. Perjury
  7. Libel
  8. Treason
  9. Malfeasance
  10. Conspiracy to rights
  11. Malicious prosecution
  12. Bias from Trier of fact (Judge Daniels)
  13. Reckless disregard for the truth
  14. harassment
  15. Invasion of right to private family life
  16. willful ignorance
  17. Inadequate or insufficient representation (due to mothers public defender not presenting evidence given to her by mother at trial for that purpose and  resting without doing so, as well as not cross-examining mary  regarding the IDI that appears to have different signatures, different letterheads, different information contained yet admitted as one exhibit, #11)

 

 

 

C (Uhring v. Uhring 241 Neb 368, 375 (1992)

When a person has a right to be heard, procedural due process includes notice to the person whose right is affected by a proceeding, that is timely notice reasonably calculated to inform the person concerning the subject and issues involved in the proceedings; a reasonable opportunity to refute or defend against a charge or accusation; a reasonable opportunity to confront and cross-examine adverse witnesses and present evidence on the charge or accusation; representation by counsel, when such is required by constitution or statute; and a hearing before an impartial decision-maker. In re Interest of L.V., 240 Neb. 404, 413 (1992).

The First District has provided the standard for dismissal for fraud on the court: A trial judge has the inherent authority to dismiss actions based on fraud and collusion. The requisite fraud on the court occurs when it can be demonstrated, clearly and convincingly, that a party has sentiently set in motion some unconscionable scheme calculated to interfere with the judicial system’s ability impartially to adjudicate a matter by improperly influencing the trier of fact or unfairly hampering the presentation of the opposing party’s claim or defense.

The integrity of the civil litigation process depends on truthful disclosure of facts. A system that depends on an adversary’s ability to uncover falsehoods is doomed to failure, which is why this kind of conduct must be discouraged in the strongest possible way. . . .

This is an area where the trial court is and should be vested with discretion to fashion the apt remedy. Cox v. Burke, 706 So. 2 d 43, 47 (Fla. 5th DCA 1998).

Dismissal is an available remedy for knowingly submitting forged or altered documents with the intent to deceive the court.” Andrews v. Palmas De Majorca Condo., 898 So. 2 d 1066, 1069 (Fla. 5th DCA 2005) (emphasis added).

“[W]here a party lies about matters pertinent to his own claim, or a portion of it, and perpetrates a fraud that permeates the entire proceeding, dismissal of the whole case is proper.” Cox, 706 So. 2 d at 47.

Under these circumstances, dismissal with prejudice is not only appropriate, but required to protect the “integrity of the civil litigation process” and to discourage such conduct “in the strongest possible way.” Id.; see also Savino v. Florida Drive In Theatre Mgmt., 697 So. 2 d 1011, 1012 (Fla. 4th DCA 1997)

(“We believe that the trial court has the right and obligation to deter fraudulent claims from proceeding in court.”).The Court’s inherent authority to sanction a party for misconduct includes not only dismissal with prejudice, but also the award of attorney’s fees. See, e.g., Sky Dev., Inc. v. Vistaview Dev., Inc., 41 So. 3d 918, 920 (Fla. 3d DCA 2010)

(holding no abuse of discretion to award attorney’s fees in addition to dismissal with prejudice); Storm v. Allied Universal Corp.,

The unsupported assertions of attorneys during court proceedings do not establish the facts asserted unless the other appropriate parties stipulate to such facts. In re Interest of Amanda H., 4 Neb. App. 293,300 (1996).

[A] judicial abuse of discretion exists when a judge, within the effective limits of authorized judicial power, elects to act or refrain from action, but the selected option results in a decision which is untenable and unfairly deprives a litigant of a substantial right or a just result in matter submitted for disposition through a judicial system. In re Interest of L.V., 240 Neb. 404, 417 (1992)

(child’s right reciprocal to the parent’s right to the companionship care, custody and management of his or her child). In Uhing, the Nebraska Supreme Court in dicta said, “Establishment and continuance of the parent-child relationship “‘is the most fundamental right a child possesses to be equated in importance with personal liberty and the most basic constitutional rights.”’

A lack of notice to the parties of hearing on a matter to be heard or determined by the court breaches due process. In re Interest of Brianna B. & Shelby B., 9 Neb. App. 529,534-35 (1994)

For purposes of the Nebraska Juvenile Code, the juvenile as described in section 43-247(3)(a), and the custodial parent are the necessary parties to a juvenile court dependency proceeding. Neb Rev. Stat. section 43-245(11)(Reissue 1998);

In re Interest of Kaylee C. & Kylee C., 253 Neb. 685, 688 (1998).Parties to juvenile court proceeding can rely on the following description of the fundamentally fair process that the juvenile court is to afford:

“When a person has a right to be heard, procedural due process includes notice to the person whose right is affected by a proceeding, that is timely notice reasonably calculated to inform the person concerning the subject and issues involved in the proceedings; a reasonable opportunity to refute or defend against a charge or accusation; a reasonable opportunity to confront and cross-examine adverse witnesses and present evidence on the charge or accusation; representation by counsel, when such is required by constitution or statute; and a hearing before an impartial decision-maker” In re Interest of L.V., 240 Neb. 404, 413 (1992).

The extent to which procedural due process must be afforded a recipient is influenced by the extent to which the recipient may be condemned to suffer grievous loss.” In re Interest of Natasha H. & Sierra H., 258 Neb. 131, 136 (2000)

When a trial court’s order is issued absent due process, a party may seek appellate relief. In re Interest of Amanda H., 4 Neb. App. 293, 304 (1996).  The determination of whether the procedures afforded an individual comport with the constitutional requirements for procedural due process presents a question of law. In re Interest of Jessica J. & Jennifer C., 9 Neb. App. 521,524 (2000)

The central meaning of procedural due process is that the parties whose rights are to be affected are entitled to be heard and in order that they may enjoy that right, they must first be notified. In re Interest of Natasha H. & Sierra H, 258 Neb. 131,136 (2000).

Due to these reasons, it is required and the mother moves the court to  dismiss with prejudice and return the child to the care and custody of her mother immediately to avoid even further violations and trauma to both mother and child.

Respectively Submitted,

Cindi Miller

Mother and Pro Se litigant

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